The term “foreign judgement” defined under section 2(6) of the Code of Civil Procedure means the judgement of a foreign court. And ‘foreign court’ defined under section 2(5) of the code means a court situated outside India and not established by the authority of the Central Government.
A decree passed before the partition of India by a court having territorial jurisdiction over the land which has fallen into Pakistan would be considered to be a foreign judgement. It cannot be executed in the Indian domain, but a suit will have to be brought upon it.
The foreign judgement can be understood as “an adjudication by a foreign court upon a matter before it” and not the reasons for the order made by it, likewise section 13 of the Code of Civil Procedure will be applicable where the orders are made without providing any reasons. As per proviso “Section 13 a foreign judgement may operate as res judicata except in the six exceptions specified in the section, and of course, in order to so operate, the other conditions of section 11 must be fulfilled.
The foreign court must be competent to try the suit, not only with regards to the pecuniary jurisdiction or subject-matter of the suit, but also with reference to its territorial jurisdiction and, the competency of the jurisdiction of the foreign court is to be judged not by the territorial law of the foreign state, but by the rules of private international law.”
Nature and Scope
The foreign judgement is enforceable on the principle that it has been tried and adjudicated by a court of competent jurisdiction, a legal obligation arises to satisfy that claim. Despite the fact that the principles of private international law of each state will differ, but the comity of nations has recognized certain rules as common to civilized jurisdictions.
This common rule is made by a thorough consideration of judicial systems prevailing in each state, for adjudicating upon the disputes involving a foreign element and to enforce judgements of foreign courts in certain matters, as per the international conventions.
Such recognition is accorded not as an act of courtesy but on considerations of justice, equity and good conscience. An awareness of foreign law in a parallel jurisdiction would be a useful guideline in determining our notions of justice and public policy. We are sovereign within our territory but it is no derogation of sovereignty to take account of foreign law.
Jurisdiction of foreign courts
As per the rule of the private international law, it is well-settled that unless a foreign court has jurisdiction in the international sense, the judgement delivered by that court would not be recognized or enforced in India. But the most important thing to be considered is the competency of the court’s jurisdiction, i.e. territorial competence over the subject-matter and over the defendant.
Its competence or jurisdiction in any other sense is not regarded as material by the courts in this country.
Conclusiveness of Foreign Judgement
A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim to litigate under the same title except-
- Where it has not been pronounced by a court of competent jurisdiction;
- Where it has not been given on the merits of the case;
- Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
- Where the proceedings in which judgement was obtained are opposed to natural justice;
- Where it has been obtained by fraud;
- Where it sustains a claim founded on a breach of any law in force in India.”
- Court of Competent Jurisdiction
Jurisdiction of foreign courts is determined by rules of private international law. In private international law, unless a foreign court has the jurisdiction in the international sphere, a judgement delivered by that court will not be recognised or enforced in India and a judgement or order passed by a court having no such jurisdiction is null and void.
Before a foreign judgement may be said to be conclusive, the following conditions must be fulfilled:
- It must be by a competent court, which is competent under the law of the state in which it has been constituted. The court in an international sense means that such court has jurisdiction over the subject-matter of controversy and jurisdiction over the parties as recognised by international law, and
- Such a court must have directly adjudicated upon the matter.
- Judgement not on merits
A foreign judgement must have been decided on the merits of the case to operate as res judicata between parties, whether the judgement of a foreign court may be of Europe or America or of a foreign court in Asia or Africa.
When a foreign judgement is not decided on the merits, it cannot be held conclusive. Where a judgement is given on evidence, it is deemed to be a judgement on the merits. However, if no evidence is adduced by the plaintiff and judgement is against the defendant by way of penalty, it will not be conclusive.
The courts in India have the right to examine a foreign judgement to check whether it has been given on merits.
- Judgement founded on an incorrect view of International Law
A foreign judgement which appears to be founded on an incorrect view of international law or refusal to recognise Indian law in cases in which such law is applicable is not conclusive. Such judgement shall not be recognised in this country and hence it is not conclusive of the matters adjudicated.
Thus, wherein a suit instituted in England on the basis of a contract made in India, the English court erroneously applied English Law, the judgement of the court is covered by general principle of private International law that the rights and liabilities of the parties to a contract are governed by the place where the contract is made (Iex loci contractus).”
- Judgement opposed to natural justice
The term ‘natural justice’ in this case refers to the form of procedure that to the merits of the particular case and related to alleged irregularities in the procedure adopted by an adjudicating court and has nothing to do with the merits of the case.
The mere fact that a foreign judgement is wrong in law does not make it violative of principles natural justice. There must be something in the procedure anterior to the judgement which is repugnant to natural justice. The court rendering the judgement must decide the matter objectively.
A foreign judgement is not open to challenge under clause (d) on the ground that the law of domicile had not been adopted in deciding on the validity, or that a mistake had been committed during delivery of the judgement.
Similarly, a judgement given without issuing notice to the defendant or without providing him with a reasonable opportunity of presenting his case is violative of principles of natural justice and cannot be enforced. However, a judgement rendered by a foreign court after the observance of fundamental judicial procedure and due observance of the judicial process is binding and conclusive even though it might have proceeded on an erroneous view of evidence or law.
- Judgement obtained by fraud
A judgement obtained by fraud is null and void in the eye of law and can be challenged in appeal, revision or even in collateral proceedings. A foreign judgement obtained by fraud will not operate as res judicata.
- Judgement founded on a breach of any law in force in Indian
Any foreign judgement which comes before an Indian court must be in conformity with and must not offend the land in force in India or the public policy. In case of any such breach it cannot be enforced in India. Therefore, a foreign judgement for a gambling debt would not be enforced in India.
In the matter of Sanjay Angad Chaddah v. Deepa Sanjay Chaddah, the competent court in London passed consent order regarding the custody of child and the said order was passed on merits of the case in the presence of both the parties and after hearing both sides, it was held that the order passed by the court in London was not in breach of any law in force in India. So, the order constitutes foreign judgement and would be binding on both parties.
Presumption as to Foreign Judgement
“Section 14 of the Code declares that the court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgement, that such judgement was pronounced by a court of competent jurisdiction, unless the contrary appears on the record, or is proved. However, if for admissibility of such copy any further condition is required to be fulfiled, it can be admitted in evidence only if that condition is satisfied.”
In Narasimha Rao v. Venkata Kakshmi, “the Supreme Court held that mere production of a photostat copy of a decree of a foreign court is not sufficient. It is required to be certified by a representative of the Central Government of that country.”
Foreign Judgement and Res Judicata
Proviso of section 13 of the code states that, a foreign judgement is conclusive, except under the circumstances specified in clause (a) to (f), as to any matter directly adjudicated upon by it between the same parties, or between parties under whom they or any of them claim, litigating under the same title, and as such it embodies the doctrine of res judicata in the case of foreign judgement. Furthermore, to operate a foreign judgement as res judicata, it should have been decided on the merits of the case by the competent court.
This section applies not only to suits on foreign judgements but also to cases in which the defendant relies on a foreign judgement as a bar to suit in India. A foreign judgement rendered after the institution of a suit would operate as a bar on the principle of res judicata embodied in section 11.
Judgement and Reasons
A foreign judgement is conclusive under Section 13 of the Code, but it does not include reasons in support of the judgement recorded by a foreign court. It cannot, therefore, be held that a foreign judgement would mean reasons recorded by a foreign judge in support of the order passed by him. If that was the meaning of “judgement”, the section would not apply to an order where no reasons are recorded.
But Supreme Court observed that Section 13 speaks not only of “judgement “ but “any matter thereby directly adjudicated upon”.
Enforcement of Foreign Judgement
The foreign judgement can be enforced in India through execution proceedings in specified cases as per Section 44 and 44a of the code. In execution proceedings, it is open to the judgement-debtor to rise the objections which he may make in a suit.
An Execution must be filed within three years from the date of judgement as provided under Article 101 of the Schedule in the Limitation Act, 1963 and the provisions of the Limitation Act, 1963 apply in computing the period of limitation. The pendency of an appeal in the foreign court will not bar a suit on the foreign judgement. However, if a suit on a foreign judgement is dismissed, no application will lie thereafter to execute that judgement.
Though a foreign judgement may be enforced by a suit in India, it is not to be supposed that Indian courts are bound in all cases to take cognisance of a suit, and they may refuse to entertain it on grounds of expediency.
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